Mt. Soledad Cross Rehearing Denied

Judges split down the middle on whether or not to keep cross

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Supporters of the cross said they will appeal the case to the Supreme Court.

Updated at 1:50 PM PST on Monday, Oct 17, 2011

A federal appeals court declined to rehear the case of a war memorial cross in a public park in San Diego that was deemed unconstitutional, but a group trying to preserve the monument vowed Monday to appeal to the Supreme Court.

The Mount Soledad Memorial Association said the 11-judge panel of the 9th U.S. Circuit Court of Appeals on Friday denied its request to let the full court rule on the decades-old case.

Cross, Yes or No?

Should the cross remain on top of Mt. Soledad? (Published Monday, Jan 17, 2011)

The U.S. Department of Justice also had requested the case be reheard to decide the fate of the 29-foot cross in the San Diego suburb of La Jolla that was dedicated in 1954 in honor of Korean War veterans and sits on public land atop a mountain overlooking the Pacific Ocean. The American Civil Liberties Union has been fighting to get the cross removed, saying it is a religious symbol on government land.

Five of the appeals court judges dissented, stating the cross should stay.

"Although we are disappointed that the Ninth Circuit denied requests to have the full court rehear this case, we are encouraged that five of the judges agree with us and believe the cross should stay," said Kelly Shackelford, president of the nonprofit Liberty Institute and attorney for the Mount Soledad Memorial Association, which oversees the monument.

The Supreme Court's conservative majority has signaled a greater willingness to allow religious symbols on public land. The court last year refused to order the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote rocky outcropping in California's Mojave Desert.

The legal fight over the Mount Soledad cross began in 1989 when atheist Philip Paulson sued the city of San Diego. Paulson, a Vietnam War veteran, contended that the cross excludes veterans who aren't Christian. A Jewish war veterans group has also been a plaintiff in the case along with the ACLU.

State and federal judges ordered the cross removed, saying it represents an unconstitutional endorsement of one religion. But in 2006, the U.S. Supreme Court blocked an order that the city take it down that summer, giving lower courts time to hear appeals.

City officials have argued that the cross is part of a secular war memorial, and the cross has been embraced by San Diego residents who in 2005 overwhelmingly approved a measure to preserve it by donating it to the federal government, although the courts said that did not protect it from the constitutional dispute.

"People want this veteran's memorial to remain as it is, from the thousands who visit it each month to honor our nation's veterans, to the 76 percent of San Diegans who voted to give it to the federal government as a national veterans' memorial," said retired Air Force Col. Bruce S. Bailey, president of the Mount Soledad Memorial Association.

Daniel Mach of the ACLU said the latest ruling reaffirms a three-judge panel decision in January that the cross is unconstitutional. That panel indicated there could be ways to remedy the situation without removing the cross, although it did not specify the particular methods.

Mach said the case could be sent back to a San Diego district court, which will decide on those details.

"We're pleased that the court's ruling will stand," said Mach, director of the ACLU's Program on Freedom of Religion and Belief. "The decision not to rehear the case reaffirms the basic principle that the government cannot play favorites with religion."